Ho Yeow Kim v Lai Hai Kuen and Another

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeKarthigesu JA
Judgment Date05 Apr 1999
Neutral Citation[1999] SGCA 24
Citation[1999] SGCA 24
Docket NumberCivil Appeal No 226 of 1998
Defendant CounselEdwin Chua (Lawrence Chua & Partners),First respondent in person
Publication Date19 Sep 2003
SubjectPrinciples relating to circumstances when appellate court will interfere with lower court's assessment,Dependency,Whether award wholly erroneous,Compensation and damages,Calculation of loss of dependency on death,Whether similar principles apply to appeal from registrar to judge in chambers and appeal from judge in chambers or judge sitting in open court to Court of Appeal,Applicable method of calculating multiplicand,Appeals,s 12 Civil Law Act (Cap 43),Damages,Review of registrar's award,Civil Procedure,Assessment of damages
Plaintiff CounselWilliam da Silva (WP da Silva & Co)
Judgment:

YONG PUNG HOW CJ

(delivering the grounds of judgment of the court): Introduction

1.The appellant was the father of the deceased, Alson Ho Hui Siong, who was killed on 31 August 1996 while a passenger in a motor car which was involved in an accident. The car, SCL 4958 L, was driven by the first respondent. An action was filed by the appellant and his wife as dependants of the deceased to which interlocutary judgment with damages to be assessed was obtained against the first respondent due to his failure to enter an appearance to the writ. The second respondents were granted leave to be joined as co-defendants to the action by an order of court dated 11 February 1998 as they were the insurers of the vehicle which was registered in the name of one Lai Hai Thong. The respondents appealed to the judge in chambers, Lai Siu Chiu J, against the assistant registrar`s assessment of the damages to be awarded. The learned judge varied the award in favour of the respondents. The appellant therefore appealed against the judge`s decision with regard to the quantum of the dependency claim.

2. The facts

The deceased was killed in a traffic accident along the Pan-Island Expressway on 31 August 1996 while he was a passenger in a motor car driven by the first respondent. At the time of his death, the deceased was 17 years old. Before this, he had completed his secondary school education and `O` Levels at Rangoon Secondary School. He however retook his `O` Levels in 1995 as a private candidate at the Orchard School of Arts and Commerce and had obtained `B`s in Chinese Language and Mathematics D, a `D` in Physics and `E`s in English Language and Additional Mathematics. In 1996, the deceased enrolled in the Institute of Technical Education (ITE) in the Mechatronics Engineering course and had undergone about three months of the course when he was killed.

3.In his affidavit of examination-in-chief for the purposes of the assessment hearing, the appellant stated that he believed that as the deceased was healthy and not suffering from any serious or debilitating medical condition or disease, he would have worked for at least 18 years taking into account the vicissitudes of life. The appellant also expressed his opinion that the deceased was a responsible and filial son who supplemented the family income even when he was schooling by working part-time. As such, the appellant believed that once the deceased obtained full-time employment, he would have continued to help support the family by contributing a portion of his salary to the appellant and his wife. The appellant estimated this to be about 60% of the deceased`s net salary and about 20% after the deceased got married.

4.It was deposed by the appellant that the deceased was likely to have earned a starting salary of about $1,375 and that this would rise to $1,429 after about nine months. After five years, the deceased would have been earning a monthly salary of about $2,140. This estimate was based on information provided by the Institute of Technical Education. The appellant further stated that the deceased was likely to have supplemented his income with part-time work, earning about $500 to $600 more a month.

5.With regard to the second respondents` liability to pay out the damages, it was established that the first respondent was neither an authorised driver within the terms of the policy nor a holder of a valid class 3 driving licence within the meaning of s 35 of the Road Traffic Act. The second respondents therefore repudiated the policy as they were of the view that they were not liable to indemnify the first respondent. However, the second respondents were obliged to satisfy the appellant`s claim under the provisions of the Motor Insurers Bureau Agreement of 22 February 1975 which was executed by the Motor Insurers Bureau with the Minister of Finance. This agreement provides that the rights of third parties such as the appellant would not be affected by the terms of any policy such as that made between the second respondents and the insured, Lai Hai Thong. The second respondents would have to satisfy the appellant`s claim. Subsequently, the insured person would then have to repay the sums paid out by the second respondents.

6.The assessment was heard before assistant registrar Vivian Wong on 3 July 1998 who awarded $103,794.53 as followed:

i Bereavement (agreed) $10,000
ii Funeral expenses $ 6,000
iii Hospital and medical expenses (agreed) $ 1,183.75
Sub-total: $17,183.75
iv Dependency claim [commat] $8,565.60 pa x 10 years $85,656
v Interest at 6% pa on $17,183 from date of writ (30.7.97) to date of judgment (338 days) $954.78
Total: $103,794.53

The only point of contention between the parties was the assessment of the dependency claim (item iv) and the matter therefore went on appeal to Lai Siu Chiu J.

7. The decision below

Lai Siu Chiu J varied the dependency claim downwards, reducing it to $26,000. She arrived at this figure by substituting the multiplier awarded below of ten years with a lower figure of seven years due to all the uncertainties involved in determining the employment prospects of the deceased who was still a student, as well as the likelihood of his getting married. The judge also applied a multiplicand of $300 in place of the `available surplus` approach apparently adopted by the assistant registrar because there was no conclusive evidence of the deceased`s potential starting salary if he did graduate from the ITE. She therefore arrived at a lower figure of $25,200.00 ($300 x 7 x 12 months) which she then rounded up to $26,000 in place of the award of $85,656.00 made below.

8.In reaching her decision, Lai Siu Chiu J found that the assistant registrar had applied the wrong law in regard to her assessment of the damages under the dependency claim. The judge held that the Civil Law Amendment Act 1987 had abolished the claim for `lost years` of the deceased. After the Act came into effect on 1 May 1987, the law only compensates the dependants of the deceased for loss of financial support, not for `lost years` based on the income the deceased would have earned had he not died. The purpose of these 1987 amendments according to the Parliamentary debates during the second reading of the bill was to overcome the undesirable consequences whereby persons other than the actual dependants of a deceased would be unjustly enriched by an award to the estate of `lost years`. Lai Siu Chiu J felt that the assistant registrar had applied the old approach used to calculate the estate`s loss of income during the lost years as the dependency claim appeared to have been calculated based on a multiplier of ten years and an `available surplus` of $713.80. This approach was based on case law in which the deceased persons had all passed away before the 1987 amendments came into effect and which was no longer applicable. The award of the assistant registrar was therefore far too generous and wrong at law.

9.As such, the learned judge assessed the dependency claim based on the facts before her. She found that there were many uncertainties regarding the value of dependency claimed by the appellant. The deceased was barely three months into his two-year ITE course which had been described as `rigorous` by the representative from the ITE, Koh Chung King (Koh). The deceased would also have to serve full-time national service for two years before he would finally be able to commence full-time employment towards the end of the year 2000. The uncertain economic situation, the possibility that something untoward might happen to the deceased during this time and the fact that he might not have turned out to be as filial to his parents as hoped all served to contribute to the judge`s view that in this case, the youth of the deceased made the claim for pecuniary loss increasingly speculative. This was borne out by comments in various cases where the deceased was of a young age. These factors thus influenced the judge to reduce the multiplier to seven years.

10.As for the multiplicand, Lai Siu Chiu J reduced it to $300 as there was no conclusive evidence of the deceased`s potential starting salary if he did graduate from ITE as Mechatronics is a fairly new course. She also found it hard to accept the ITE`s estimation that ITE graduates would earn a higher starting salary than graduates from local polytechnics which was in the region of $1,419 for this line of work. Applying this multiplicand and the multiplier of seven years, the end result was...

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